Tocarra L. Woodson v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 20 2017, 10:58 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michelle F. Kraus Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tocarra L. Woodson, December 20, 2017
Appellant-Defendant, Court of Appeals Case No.
02A03-1706-CR-1431
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Wendy Davis,
Appellee-Plaintiff Judge
Trial Court Cause No.
02D05-1609-F6-1094
May, Judge.
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[1] Tocarra L. Woodson appeals her aggregate two-year sentence for Level 6 felony
identity deception 1 and Class A misdemeanor deception. 2 She argues the trial
court abused its discretion when it did not recognize certain mitigators and her
sentence is inappropriate. We affirm.
Facts and Procedural History
[2] On June 2, 2016, Summit City Healthcare hired Woodson to be a registered
nurse at its facility. Woodson does not hold a license to be a registered nurse
and does not have a degree qualifying her to be a registered nurse. Summit City
discovered discrepancies in Woodson’s application, and after Woodson refused
to provide a copy of a nursing license or her social security card, Summit City
terminated her employment. Woodson did not interact with any patients at
Summit City.
[3] On July 7, 2016, Woodson applied for a position as a registered nurse at
Lutheran Life Villages. She provided a nursing license with the name Tocarra
Welch and told Lutheran Life that Welch was her maiden name, though it was
not. Lutheran Life hired Woodson. While working at Lutheran Life,
Woodson was required to dispense medication to patients, draw blood, give
insulin, start IVs, and care for wounds. Lutheran Life had issues with her
1
Ind. Code § 35-43-5-3.5(a) (2014).
2
Ind. Code § 35-43-5-3(a)(2) (2014).
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performance, as Woodson attempted to administer the wrong medication to a
patient and did not dress a wound properly. After an investigation by Lutheran
Life and an Indiana Attorney General Investigator, Lutheran Life terminated
Woodson on July 25, 2016. At the time of her termination, Woodson had
worked 188 hours at Lutheran Life.
[4] Police arrested Woodson on September 28, 2016, and the State charged her
with Level 6 felony identity deception and Class A misdemeanor deception.
While out on bond, Woodson used Welch’s identity to secure another nursing
job with Home Health Care Agency from December 7, 2016, to April 4, 2017.
She faces additional charges related to that incident.
[5] On April 11, 2017, Woodson pled guilty as charged. On May 31, 2017, the trial
court held a sentencing hearing and sentenced Woodson to two years for Level
6 identity deception and one year for Class A misdemeanor deception, to be
served concurrently. The trial court also noted on its judgment of conviction,
“[Woodson] ordered to refrain from seeking employment [at] Medicaid facility
if released while still serving executed sentence through alt[ernative]
sentencing.” (App. Vol. II at 24) (emphasis in original).
Discussion and Decision
Abuse of Discretion
[6] When the trial court imposes a sentence within the statutory range, we review
for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007),
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clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). We may reverse a decision that is
“clearly against the logic and effect of the facts and circumstances before the
court, or the reasonable, probable, and actual deductions to be drawn
therefrom.” Id. (quoting In re L.J.M., 473 N.E.2d 637, 640 (Ind. Ct. App.
1985)). The trial court is not required to find mitigating factors or give them the
same weight the defendant does. Flickner v. State, 908 N.E.2d 270, 273 (Ind. Ct.
App. 2009). “When a defendant offers evidence of mitigators, the trial court
has the discretion to determine whether the factors are mitigating, and it is not
required to explain why it does not find the proffered factors to be mitigating.”
Johnson v. State, 855 N.E.2d 1014, 1016 (Ind. Ct. App. 2006), trans. denied.
However, a court abuses its discretion if it does not consider significant
mitigators advanced by the defendant and clearly supported by the record.
Anglemyer, 868 N.E.2d at 490.
[7] The trial court found as mitigators the fact that Woodson took responsibility for
her actions, pled guilty, and expressed remorse, though the court noted, “I’m
trying to ferret through that remorse. . . . I think it’s heartfelt probably because
you’re in custody, but candidly, based on your history, I’m not sure how
credible it is[.]” (Tr. Vol. II at 24-5.) The trial court found as aggravators
Woodson’s criminal history, the circumstances of the case, and failed attempts
at rehabilitation. Woodson argues the trial court abused its discretion when it
did not consider as mitigators Woodson’s contention she “suffered from
physical, emotional, sexual and verbal abuse by her mother and her mother’s
boyfriend from age nine to eighteen[,]” (Br. of Appellant at 7); she had four
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dependent children; her Indiana Risk Assessment System (“IRAS”) score
indicated she was only a moderate risk to reoffend; 3 and she was attending
school and was employed at the time of sentencing.
[8] First, regarding Woodson’s history of abuse, we note Woodson did not present
this factor as mitigating to the trial court, and the only mention thereto exists as
part of her presentence investigation report. Thus, our consideration of that
mitigator is waived. See Bryant v. State, 984 N.E.2d 240, 252 (Ind. Ct. App.
2013) (“Failure to present a mitigating circumstance to the trial court waives
consideration of the circumstance on appeal.”), trans. denied. Waiver
notwithstanding, our Indiana Supreme Court has held “that evidence of a
difficult childhood is entitled to little, if any, mitigating weight.” Bethea v. State,
983 N.E.2d 1134, 1141 (Ind. 2013). We therefore conclude the trial court did
not abuse its discretion when it did not give this factor mitigating weight.
[9] Woodson has four dependent children. Absent special circumstances, a trial
court is not required to find incarceration would place an undue burden on a
defendant’s minor children, because many incarcerated individuals have
children. Reese v. State, 939 N.E.2d 695, 703 (Ind. Ct. App. 2011), trans. denied.
Because Woodson did not demonstrate the hardship on her children would be
greater than that usually experienced by children whose parent is incarcerated,
3
The trial court did consider Woodson’s IRAS score, but chose not to give it mitigating weight, nor was the
court required to do so. See Flickner, 908 N.E.2d at 273 (trial court is not obliged to give a mitigating factor
the same weight the defendant does).
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the trial court did not abuse its discretion when it did not give this factor
mitigating weight.
[10] Woodson testified she had a job cleaning buildings and was in school with a
GPA of 3.62. The trial court is not required to find her ability to maintain
employment a significant mitigating factor. See Creekmore v. State, 853 N.E.2d
523, 530 (Ind. Ct. App. 2006) (“many people are gainfully employed such that
this would not require the trial court to note it as a mitigating factor or afford it
the same weight as defendant proposed”), clarified on denial of reh’g in Creekmore
v. State, 850 N.E.2d 230 (Ind. Ct. App. 2006). Nor was the court obliged to find
Woodson’s pursuit of higher education a mitigator. See Benefield v. State, 904
N.E.2d 239, 248 (Ind. Ct. App. 2009) (trial court not required to find higher
education a mitigator), trans. denied. Thus, the trial court did not abuse its
discretion when it did not give these factors mitigating weight.
Inappropriate Sentence
[11] We may revise a sentence if it is inappropriate in light of the nature of the
offense and the character of the offender. Williams v. State, 891 N.E.2d 621, 633
(Ind. Ct. App. 2008) (citing Ind. Appellate Rule 7(B)). We consider not only
the aggravators and mitigators found by the trial court, but also any other
factors appearing in the record. Roney v. State, 872 N.E.2d 192, 206 (Ind. Ct.
App. 2007), trans. denied. The appellant bears the burden of demonstrating her
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
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[12] When considering the nature of the offense, the advisory sentence is the starting
point to determine the appropriateness of a sentence. Anglemyer, 868 N.E.2d at
494. The advisory sentence for a Level 6 felony is one year, with a sentencing
range between six months and two and one-half years. Ind. Code § 35-50-2-7(b)
(2016). One factor we consider when determining the appropriateness of a
deviation from the advisory sentence is whether there is anything more or less
egregious about the offense committed by the defendant that makes it different
from the “typical” offense accounted for by the legislature when it set the
advisory sentence. Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App. 2008), trans.
denied.
[13] Woodson argues she committed “non-violent, low-level” offenses. (Br. of
Appellant at 7.) However, her argument ignores the danger she put multiple
patients in when she used false information to obtain nursing jobs without a
license or degree. Robin Good, the director of nursing at Lutheran Life
Villages, where Woodson fraudulently practiced nursing, indicated Woodson
was responsible for “administering medications . . . drawing blood . . . giving
Insulin . . . administering medications through IVs, [and] dressing changes.”
(Tr. Vol. II at 13.) Good also testified that during Woodson’s employment at
Lutheran Life, Woodson “was attempting to administer the wrong medications
to patients at the wrong times one of those being Coumadin which is a blood
thinner. I can’t say for the IV whether she did it correctly or not. The dressing
change on the pic line which made it not functional.” (Id. at 13-14.) While
these actions were not life-threatening, Good admitted Woodson’s actions
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could have endangered someone’s life because “if you run an IV incorrectly it
could be fatal. You could get renal failure. . . . With giving insulin you could -
if you give the wrong dose there’s many, many things that could happen.” (Id.
at 14.)
[14] To prove Woodson committed Level 6 identity deception, the State had to
provide evidence she used another person’s identity without that person’s
consent with the intent to defraud or harm another person, assume another
person’s identity, or profess to be another person. See Ind. Code § 35-43-5-
3.5(a) (elements of identity deception). Woodson’s actions far exceeded those
required for the commission of the crime. Based thereon, we cannot say
Woodson’s sentence is inappropriate based on the nature of her offenses. See
Anderson v. State, 989 N.E.2d 823, 827 (Ind. Ct. App. 2013) (sentence not
inappropriate based on nature of the offense when the circumstances of the
crime committed exceeded the necessary elements of the crime), trans. denied.
[15] When considering the character of the offender, one relevant fact is the
defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.
App. 2007). The significance of criminal history varies based on the gravity,
nature, and number of prior offenses in relation to the current offense. Id.
Woodson, who was twenty-eight years old at the time of sentencing, has
accumulated five misdemeanor and three felony convictions as an adult.
Woodson’s convictions are mostly for crimes of deception, such as check
deception, false informing, check fraud, and theft. Based thereon, we cannot
say Woodson’s sentence is inappropriate based on her character. See Stephenson
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v. State, 53 N.E.3d 557, 562 (Ind. Ct. App. 2016) (holding enhanced sentence
not inappropriate where appellant had criminal history reflecting poorly on his
character).
Conclusion
[16] The trial court did not abuse its discretion when it did not consider certain
factors to be mitigators when sentencing Woodson. Similarly, Woodson’s
sentence is not inappropriate. Accordingly, we affirm.
[17] Affirmed.
Vaidik, C.J., and Altice, J., concur.
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